Air India Ltd. vs Union Of India And Anr.
2014 Latest Caselaw 3811 Del

           THE HIGH COURT OF DELHI AT NEW DELHI
%                                Judgment delivered on: 20.08.2014

+       W.P.(C) 5232/2014 & CM No. 10407/2014
AIR INDIA LTD.                                            ..... Petitioner

                                    versus
UNION OF INDIA AND ANR.                                   ..... Respondents

Advocates who appeared in this case:
For the Petitioner   : Mr Mukesh Kumar.
For the Respondents  : Mr Rajesh Gogna, CGSCwith Mr Arnab,
                       Advocates for R-1 & 2.

CORAM:-
HON'BLE MR JUSTICE VIBHU BAKHRU
                                JUDGMENT

VIBHU BAKHRU, J (ORAL)

1. Issue notice.

2. The learned counsel for respondent nos.1 and 2 accepts notice.

3. The petitioner has filed the present petition impugning the order dated 03.06.2014 (hereinafter referred to as the 'impugned order') passed by respondent no.1. By the impugned order, the appeal preferred under Section 4 of the Immigration (Carriers' Liability) Act, 2000 (hereinafter referred to as 'the Act') against the order dated 25.11.2013 passed by Foreigners Regional Registration Officer (FRRO) cum Civil Authority, Amritsar - respondent no.2, was dismissed by the respondent no.1.

4. By the said order dated 25.11.2013, respondent no. 2 had imposed a penalty on the petitioner for the alleged violation of provisions of the Passport (Entry into India) Act, 1920 and Rules made thereunder. The allegation against the petitioner was that the petitioner had transported a passenger to Amritsar who did not hold a valid passport on the date of his travel. It is the petitioner's case that the validity of the passport of the said passenger had been extended and this was overlooked by the FRRO cum Civil Authority.

5. A perusal of the impugned order dated 03.06.2014 indicates that sole reason for rejecting petitioner's appeal was that the appeal was delayed beyond the period of thirty days from the date of the order i.e. 25.11.2013. It is noted that the appeal was filed on 01.01.2014 and, thus, there was a delay of eight days on the part of the petitioner in preferring the said appeal.

6. The petitioner states that alongwith the appeal, an application for condoning the delay of 8 days was filed, however, the said application has not been considered by the respondent.

7. Although, section 4(2) of the Act provides that every appeal be preferred within a period of thirty days, it is also provides that on sufficient cause being shown, the Central Government may permit the appellant to prefer an appeal within a further period of 30 days. Section 4 of the Act is reproduced as under:-

"4. Appeals-

(1) An appeal shall lie against the order made under section 3 of this Act to the Joint Secretary to the Government of India in

the Ministry of Home Affairs authorised in this behalf by that Government.

(2) Every such appeal shall be preferred within thirty days from the date of the order appealed against: Provided that the appellate authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of thirty days, permit the appellant to prefer the appeal within a further period of thirty days. (3) On receipt of any such appeal, the appellate authority shall, after giving the parties a reasonable opportunity of being heard and after making such inquiry as it deems proper, make such order, as it may think fit, confirming, modifying or reversing the order appealed against.

(4) Every appeal shall be preferred on payment of such fees as may be prescribed."

8. It is apparent from the above that the respondent no.1 has the power to condone the delay in filing an appeal under section 4 of the Act. It is well settled that coupled with every power is duty to exercise the same. In my view, the respondent no. 1 erred in not considering the application for condonation of delay and had failed to exercise the power as vested under Section 4(2) of the Act. The petitioner had explained that the delay in filing the appeal was caused because of the time taken in the process f taking the decision and filing the appeal. It is stated that the petitioner received the copy of the order on 25.11.2013 and sent to its Delhi office for taking the decision for filing the appeal. After due deliberations, the decision was taken and the file was sent to the advocates for preparing the draft of the Appeal. In my view, the petitioner had disclosed sufficient

cause for the delay in filing the appeal. Moreover, given that the the order dated 25.11.2013 imposes a penalty on the petitioner and that the period of preferring the appeal is relatively short, a liberal approach in condoning the delay is warranted.

9. Accordingly, the impugned order is set aside and the matter is remanded to the respondent to consider afresh on merits uninfluenced by the delay in preferring the appeal.

10. The writ petition is allowed in the aforesaid terms.

VIBHU BAKHRU, J AUGUST 20, 2014 MK